Norfolk VA former sign ordinance unconstitutional under First Amendment – Fourth Circuit

Central Radio Company, Inc. v. Norfolk. Central radio sued Norfolk, Virginia, over its sign ordinance, alleging that it violated the First and Fourteenth amendments.

For background, the city’s Redevelopment and Housing Authority started condemnation proceedings against Central Radio in 2010. In 2012, while an appeal in that proceeding was pending, the company put a banner on the side of their building, which faced a six-lane highway.

The banner depicted an American flag, Central Radio’s logo, a red circle with a slash across the words “Eminent Domain Abuse,” and the following message in rows of capital letters: “50 YEARS ON THIS STREET / 78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT DOMAIN!”

Central Radio Sign

After an inspection, the city concluded that the sign was larger than permitted by the sign code and that the company had not obtained a sign certificate, as was required by the code. The city issued a citation.

Central radio sued the city to enjoin enforcement of the sign code.

The district granted summary judgment for the city, concluding that the exemptions were content-neutral and, applying intermediate scrutiny, held the code was constitutional. The Fourth Circuit affirmed in 2015. After that decision, two things happened: (1) the city amended its sign code, and (2) the Supreme Court handed down its decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).

Because of the revision to the code, the Circuit Court concluded that the request for prospective relief was moot, and dismissed that portion of the appeal.

After Reed, “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed abrogates Fourth Circuit precedent in Brown v. Cary, which looked first to the government’s purpose in the regulation. Under Reed, however, the Court concluded that because of the code’s exemptions for flags and art, it was a content-based restriction subject to strict scrutiny under the first amendment.

Because Norfolk’s sign code was content-based, strict scrutiny applied. Under strict scrutiny, the government must show that the code “further[ed] a compelling interest and [wa]s narrowly tailored to achieve that interest.” Here, even if the city had a compelling interest in, for example, preserving the community aesthetic, the exemption for all types of flags or art (including commercial art), meant that the code was not narrowly tailored.

Central Radio also argued that the sign certificate effectuated a prior restraint, and that the city selectively applied the code in a discriminatory way. The Fourth Circuit rejected that argument:

Even assuming, without deciding, that the City’s past refusal to enforce strictly the former sign code constituted evidence of discriminatory effect, dismissal of the plaintiffs’ selective enforcement claim was proper because there was insufficient evidence that the City was motivated by a discriminatory intent.

In sum, this decision is a clear recognition of the Supreme Court’s abrogation of Brown and the more pragmatic approach to evaluating regulation of speech set forth in Reed.